P. v. Lampkin

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Filed 5/3/21 P. v. Lampkin CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
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THE PEOPLE,
Plaintiff and Respondent,
v.
LEON LAMPKIN, JR.,
Defendant and Appellant.
C089258
(Super. Ct. No.
CRF990000320)
A jury convicted defendant Leon Lampkin, Jr., of the first degree murders of
Alejandro and Leoncio Jimenez, first degree burglary, attempted robbery, and possession
of a short-barrel shotgun. The jury found true various firearm enhancement allegations

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and Penal Code section 190.21 special circumstances allegations, but found that
defendant did not intentionally and personally discharge a firearm during the commission
of the crimes. This court affirmed the convictions in 2002 but remanded the matter for
resentencing on the determinate terms. (People v. Lampkin (March 20, 2002, C034676)
[nonpub. opn.], pp. 25-26 (Lampkin).) Defendant was resentenced in 2002. About 16
and a half years later, defendant filed a petition for resentencing under section 1170.95
and requested the appointment of counsel. The trial court denied the petition because it
determined defendant was ineligible for resentencing as a matter of law.
Defendant now contends (1) the trial court failed to comply with section 1170.95,
subdivision (c) because it denied his petition without appointing counsel for him and
allowing the parties to file briefs; and (2) the trial court’s order violated his constitutional
rights to due process and the assistance of counsel.
Finding no error by the trial court, we will affirm the order denying defendant’s
petition for resentencing.
BACKGROUND
We treated defendant’s motion to augment the record on appeal as a motion to
incorporate by reference the record in defendant’s prior appeal and granted the motion.
The record shows the following.
The People charged Michael Owens and defendant with the murders of Alejandro
and Leoncio Jimenez. In an amended information, the People charged defendant with
first degree murder (§ 187-- counts I and II), first degree burglary (§ 459 -- count III),
attempted robbery (§§ 664, 211 -- counts IV and V), and possession of a short-barrel
shotgun (§ 12020, subd. (a) -- count VI). The amended information included multiple
1 Undesignated statutory references are to the Penal Code.

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special circumstances and firearm enhancement allegations (§§ 190.2, subds. (a)(3),
(a)(17)(A) & (a)(17)(G), 12022.53, subds. (b) & (c), 12022.5, subd. (a)(1)).
The trial court instructed the jury on felony murder. With regard to the section
190.2 special circumstances allegations, it instructed that if the jury found defendant
guilty of murder in the first degree, the jury must then make findings on the special
circumstances allegations that (1) the murders were committed while defendant was
engaged in, or was an accomplice in, the commission or attempted commission of
robbery; (2) the murders were committed while defendant was engaged in, or was an
accomplice in, the commission or attempted commission of burglary; and (3) defendant
was convicted of more than one offense of murder in the first or second degree. The trial
court further instructed: “If you find that a defendant was not the actual killer of a human
being or a co-conspirator, you cannot find the special circumstance to be true as to that
defendant unless you are satisfied beyond a reasonable doubt that such defendant with
intent to kill or with reckless indifference to human life and as a major participant
assisted in the commission of the crime of attempted robbery or first degree burglary
which resulted in the death of a human being. [¶] A defendant acts with reckless
indifference to human life when that defendant knows or is aware that his acts involve a
grave risk of death to an innocent human being.” The trial court did not instruct on the
natural and probable consequences doctrine of aiding and abetting.
The jury convicted defendant on all counts. It found true the firearm enhancement
and special circumstances allegations, except for the allegation that defendant
intentionally and personally discharged a firearm during the commission of the crimes.
The trial court sentenced defendant to state prison for two consecutive terms of life
without the possibility of parole, plus a determinate term of 37 years.
On appeal, this court remanded the matter with directions to resentence defendant
on the determinate terms but affirmed the convictions and sentence in all other respects.
(Lampkin, supra, C034676, at pp. 25-26) The trial court resentenced defendant to two

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consecutive terms of life without the possibility of parole, plus two consecutive 10-year
terms for the section 12022.53, subdivision (b) firearm enhancements.
Defendant subsequently filed a petition for resentencing pursuant to section
1170.95. He averred that (1) a complaint or information was filed against him that
allowed the prosecution to proceed under the felony murder rule or the natural and
probable consequences doctrine; (2) at trial, he was convicted of first or second degree
murder pursuant to the felony murder rule or the natural and probable consequences
doctrine; (3) he could not now be convicted of first or second degree murder because of
changes made to sections 188 and 189 effective January l, 2019; and (4) he was not the
actual killer; did not, with intent to kill, aid or abet the actual killer in the commission of
murder in the first degree; and was not a major participant in the felony or did not act
with reckless indifference to human life during the course of the crime. Defendant asked
the trial court to appoint counsel for him.
The trial court summarily denied the petition because the jury had been instructed
that to find the special circumstances allegations true it must be satisfied beyond a
reasonable doubt that defendant with intent to kill or reckless indifference to human life
and as a major participant assisted in the commission of the crime of attempted robbery
or first degree burglary which resulted in the death of a human being, and the jury found
the special circumstances allegation true.
DISCUSSION
I
Defendant contends the trial court failed to comply with section 1170.95,
subdivision (c) because it denied his petition without appointing counsel for him and
allowing the parties to file briefs.
A
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, restricted the application of the felony-murder rule, as applied to

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murder, by amending section 189.2 (People v. Lamoureux (2019) 42 Cal.App.5th 241,
248-249.) Prior to the enactment of Senate Bill No. 1437, “a defendant could be
convicted of murder ‘ “ ‘when the defendant or an accomplice kill[ed] someone during
the commission, or attempted commission, of an inherently dangerous felony . . . .’ ” ’
[Citation.] . . . ‘[F]elony-murder liability d[id] not require an intent to kill, or even
implied malice, but merely an intent to commit the underlying felony.’ [Citation.]”
(Lee, supra, 49 Cal.App.5th at p. 261, fn. omitted, review granted.) Senate Bill No. 1437
added section 189, subdivision (e) to now provide that “[a] participant in the perpetration
or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is
liable for murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added section 1170.95, “which permits an individual
convicted of felony murder or murder under a natural and probable consequences theory
to petition the sentencing court to vacate the conviction and to be resentenced on any
remaining counts if he or she could not have been convicted of first or second degree
murder because of Senate Bill [No.] 1437’s changes to sections 188 and 189.” (People v.
2 Senate Bill No. 1437 also eliminated liability for murder under the natural and
probable consequences doctrine. (People v. Lee (2020) 49 Cal.App.5th 254, 262, review
granted July 15, 2020, S262459 (Lee); People v. Offley (2020) 48 Cal.App.5th 588, 595.)
But we do not discuss the natural and probable consequences doctrine of aiding and
abetting liability because the trial court did not instruct the jury on that doctrine.
The prosecutor relied on the felony-murder rule in his closing argument to the jury.

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Verdugo (2020) 44 Cal.App.5th 320, 326, review granted March 18, 2020, S260493
(Verdugo).)
Section 1170.95, subdivisions (b) and (c) create a three-step review. (People v.
Perez (2020) 54 Cal.App.5th 896, 903, review granted December 9, 2020, S265254;
People v. Tarkington (2020) 49 Cal.App.5th 892, 897, review granted August 12, 2020,
S263219 (Tarkington); People v. Drayton (2020) 47 Cal.App.5th 965, 974-981
(Drayton); People v. Torres (2020) 46 Cal.App.5th 1168, 1177-1178, review granted
June 24, 2020, S262011 (Torres); Verdugo, supra, 44 Cal.App.5th at pp. 327-330,
review granted; contra People v. Cooper (2020) 54 Cal.App.5th 106, 118-123,
review granted November 10, 2020, S264684 (Cooper).) First, the trial court determines
whether the petition is facially sufficient under section 1170.95, subdivision (b).
(Verdugo, at pp. 327-328.) To do this, the trial court verifies that the petition contains the
information required under section 1170.95, subdivision (b)(1), and supplies any missing
information that can be readily ascertained from the record of conviction. (Verdugo, at
pp. 328-330.) Section 1170.95, subdivision (b)(1) requires the following information:
“(A) A declaration by the petitioner that he or she is eligible for relief under this section,
based on all the requirements of subdivision (a). [¶] (B) The superior court case number
and year of the petitioner’s conviction. [¶] [And] (C) Whether the petitioner requests
the appointment of counsel.” (§ 1170.95, subd. (b)(1).) If any of the required
information “is missing from the petition and cannot be readily ascertained by the court,
the court may deny the petition without prejudice to the filing of another petition and
advise the petitioner that the matter cannot be considered without the missing
information.” (§ 1170.95, subd. (b)(2).)
If the petition is facially sufficient, then, in the second step, the trial court
determines under section 1170.95, subdivision (c) whether the petitioner has made
“a prima facie showing that the petitioner falls within the provisions of this section.”
(§ 1170.95, subd. (c).) To make this prima facie showing, the petitioner must

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demonstrate the following: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder. [¶] [And] (3) The petitioner could not be convicted of
first or second degree murder because of changes to section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).)
The Court of Appeal for the Second District, Division 7, has described the second-
step inquiry as “a preliminary review of statutory eligibility for resentencing, a concept
that is a well-established part of the resentencing process under Propositions 36 and 47.”
(Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) “The court’s role at this
stage is simply to decide whether the petitioner is ineligible for relief as a matter of law,
making all factual inferences in favor of the petitioner.” (Ibid.) In making this inquiry,
the trial court may again examine “readily available portions of the record of conviction,”
including “at least,” the “complaint, information or indictment filed against the petitioner;
the verdict form or factual basis for a negotiated plea; and the abstract of judgment.” (Id.
at pp. 323, 329-330.) The trial court may also consider jury instructions and any
appellate opinion in the case. (Id. at pp. 333-336.)
If the trial court determines that the petitioner has made a prima facie showing that
he or she falls within the provisions of section 1170.95, the evaluation of the petition
proceeds to the third step, a “second prima facie review,” in which “the court must direct
the prosecutor to file a response to the petition, permit the petitioner (through appointed
counsel if requested) to file a reply and then determine, with the benefit of the parties’
briefing and analysis, whether the petitioner has made a prima facie showing he or she is
entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at pp. 328, 330, review granted.)
In this second prima facie review, the trial court must take the petitioner’s factual

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allegations as true and make a preliminary assessment whether he or she would
be entitled to relief if they were proved. (Id. at p. 328; see also Drayton, supra,
47 Cal.App.5th at p. 980.)
“If, accepting the facts asserted in the petition as true, the petitioner would
be entitled to relief because he or she has met the requirements of section
1170.95[, subdivision ](a), then the trial court should issue an order to show cause.
[Citation.] Once the trial court issues the order to show cause under section
1170.95[, subdivision ](c), it must then conduct a hearing pursuant to the procedures and
burden of proof set out in section 1170.95, [subdivision] (d) unless the parties waive the
hearing or the petitioner’s entitlement to relief is established as a matter of law by the
record. [Citation.] Notably, following the issuance of an order to show cause, the burden
of proof will shift to the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Drayton, supra, 47 Cal.App.5th at pp. 980-
981.) Both the prosecution and the defense may rely on the record of conviction or may
offer new or additional evidence. (§ 1170.95, subd. (d)(3).)
B
In People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted March 18,
2020, S260598 (Lewis), the California Supreme Court is currently considering when the
right to appointed counsel arises under section 1170.95, subdivision (c). Meanwhile, we
conclude that section 1170.95, subdivision (c) does not require the trial court to appoint
counsel for the petitioner unless and until the trial court determines that the petitioner
falls within the provisions of section 1170.95 and the petitioner has requested counsel.
(Tarkington, supra, 49 Cal.App.5th at pp. 899-902, review granted; Verdugo, supra,
44 Cal.App.5th at p. 323, review granted; Lewis, at p. 1140; contra Cooper, supra,
54 Cal.App.5th at p. 123, review granted.) Following the analysis of section 1170.95,
subdivision (c) in Lewis and Verdugo, the filing of briefs by the prosecutor and the
petitioner also occurs after the trial court has determined that the petitioner falls within

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the provisions of section 1170.95. (§ 1170.95, subd. (c).) We conclude there was no
error in this case because the trial court determined at the second-step inquiry that
defendant did not fall within the provisions of section 1170.95.
Based on the special circumstances instruction to the jury and the jury’s special
circumstances findings, the trial court concluded that defendant was ineligible for
resentencing under section 1170.95 and denied the petition. Defendant urges that
section 1170.95 does not permit a review of the record during the prima facie
determination under subdivision (c). Whether a trial court may consider the record of
conviction in the second step of review is also before the California Supreme Court in
Lewis, supra, 43 Cal.App.5th 1128, S260598. Pending guidance from our Supreme
Court, we agree with the courts that have held it is proper for a trial court to consider the
record of conviction, including instructions to the jury and the jury’s verdicts, in
determining whether the petitioner has made a prima facie showing that he or she falls
within the provisions of section 1170.95. (Tarkington, supra, 49 Cal.App.5th at pp. 908-
909, review granted; Lee, supra, 49 Cal.App.5th at pp. 262-263, review granted; People
v. Law (2020) 48 Cal.App.5th 811, 820-821, review granted July 8, 2020, S262490;
People v. Edwards (2020) 48 Cal.App.5th 666, 673-674, review granted July 8, 2020,
S262481; Torres, supra, 46 Cal.App.5th at pp. 1177-1178, review granted; Verdugo,
supra, 44 Cal.App.5th at pp. 329-330, review granted; Lewis, at pp. 1137-1138, review
granted.) Defendant fails to demonstrate error by the trial court.
II
Defendant also contends the trial court’s ruling violated his constitutional rights to
due process and the assistance of counsel. We disagree.
“A criminal defendant has a constitutional right to counsel at all critical stages of a
criminal prosecution, including sentencing.” (People v. Doolin (2009) 45 Cal.4th 390,
453.) “ ‘ “The determination whether the hearing is a ‘critical stage’ requiring the
provision of counsel depends . . . upon an analysis ‘whether potential substantial

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prejudice to defendant’s rights inheres in the [particular] confrontation and the ability of
counsel to help avoid that prejudice.’ ” [Citation.]’ [Citation.] ‘ “[T]he essence of a
‘critical stage’ is . . . the adversary nature of the proceeding, combined with the
possibility that a defendant will be prejudiced in some significant way by the absence of
counsel.” ’ ” (People v. Rouse (2016) 245 Cal.App.4th 292, 297 (Rouse).)
Defendant relies primarily on Rouse for his constitutional argument. In Rouse, the
court held that a defendant being resentenced under Proposition 47 is entitled to counsel
because the resentencing is a critical stage in the adversarial proceedings. However, the
court emphasized: “To be clear, we conclude the right attaches only at the resentencing
stage. Whether the right to counsel attaches at an earlier stage of the petition, including
the eligibility phase, was not before us and we therefore express no opinion on that
issue.” (Rouse, supra, 245 Cal.App.4th at p. 301; see also People v. Washington (2018)
23 Cal.App.5th 948, 957 [indicating right to counsel attaches at evidentiary hearing under
Proposition 47].) Unlike the petitioner in Rouse, defendant did not pass the eligibility
stage.
The trial court’s role at step two of the section 1170.95 inquiry “is simply to
decide whether the petitioner is ineligible for relief as a matter of law, making all factual
inferences in favor of the petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 329, review
granted.) Because all factual inferences are drawn in favor of defendant, defendant is not
brought into confrontation with the state at step two, and appointment of counsel is not
required at that step. (See Lewis, supra, 43 Cal.App.5th at p. 1138, review granted.) The
authorities defendant cites do not hold that there is a constitutional right to appointed
counsel in circumstances analogous to the second step under section 1170.95, nor do they
support a due process claim in the present circumstances. Because section 1170.95,
subdivision (c) does not require the trial court to appoint counsel for defendant at the
second step review, there can be no expectation of receiving a right or benefit that could
give rise to a claim of denial of due process.

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DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
/S/
MAURO, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.

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